Roberts v. Berdell, 61 Barb. 37

Roberts v. Berdell

61 Barb. 37 | N.Y. Sup. Ct. | 1871

By the Court, Geo G. Barnard, J.

In 1866, the defendant was the vice president of the Long Dock Company. One Alfred B. Seymour was a contractor with them for building a tunnel under Bergen Hill. Seymour’s contract provided that he should be paid, partly, in the bonds of the company, by the defendant, who was acting president, upon Seymour’s requisitions on the company. The *39company was trying to negotiate a large amount of its bonds, for n early par, and for the purpose of keeping them out of the market, pending the negotiation, the defendant promised Seymour to loan him, of his individual funds, eighty per cent, .on Seymour’s bonds, until they reached par, if he would not place them in the market. The defendant made three loans, aggregating $3200, and received as a pledge four bonds, of $1000 each. The amounts of these loans were charged by Berdell, in his monthly accounts with the company, as advances made to Seymour, by him, and were so allowed and paid to the defendant, by the company. "When the defendant was detected in this, by the plaintiff’s assignor, he excused the matter, as a mistake, and agreed to return the bonds to Seymour. But upon-demand being made of him for them, he refused to return them, and the plaintiff’s assignor, Seymour, sued as for a conversion of the bonds.

[First Department, General Term, at New York, November 7, 1871.

I fail to discover any error on the part of the referee, in the admission or rejection of evidence.

The motion to dismiss the complaint was properly denied. The evidence before the referee, upon the merits, was conflicting, and his decision is final.

The action is not barred by the statute of limitations. The statute commenced running when the demand was made, and when the defendant refused to deliver the bonds. This occurred in June 1861, and the action was commenced in April 1867.

The judgment must be affirmed, with costs, and, consequently, Justice Brady’s order should also be affirmed.

Ctirdozo and Geo. G. Barnard, Justices.]